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A different judicial ruling

A couple of weeks ago I highlighted a good judicial ruling. This week I'm reporting on a bad one, though I believe they happened at about the same time.

That was an opinion on an actual case. This is a ruling to let a case go to trial for defamation. The facts are these: In 2010, Steve Driehaus was running for re-election to Congress. The Susan B. Anthony List ran ads against him in which they argued that he supported federal funding for abortions because he had voted for Obamacare. He lost his re-election bid and has now sued the SBAL for defamation.

Federal Judge Timothy Black, an Obama appointee, had the option of throwing out the case. Instead, he let it go to trial.

Let me make clear the seriousness of this: Normally, political speech on controverted questions relevant to policy is taken to be obviously outside the pale of defamation civil suits. It is supposed to be, in our system, important that such speech be afforded the clearest legal protections and that juries not be called upon to settle hot-button contemporary questions as part of settling defamation claims. A defamation claim is very strong and requires not only that the statement made be false but also that it be known (by the person making it) to be false or made in reckless disregard of the truth--this is called the "malice" criterion. As a lawyer friend has put it:

[The judge] clearly comprehended the position that SBA was taking, which is that funding plans that do not prevent abortion coverage inevitably end up covering abortions, since money is fungible. That was the position taken contemporaneously by numerous pro-life organizations. So the judge, knowing the position and knowing the claim, cursorily dismisses it, even though there is no evidence at all that the claim was knowingly false or in reckless disregard of the truth and considerable evidence to the contrary. This is squarely in First Amendment protections, and the whole point of having them is to prevent these matters from going to trial so that political speech is not chilled.

He continues:

There is no evidence that [SBAL] did not, at the time, believe the explanation. Likewise, reckless disregard would require that no reasonable person would have believed the explanation. In short, any objectively reasonable explanation that someone could believe is supposed to suffice to get the case kicked when the subject is a public figure. The only exception would be if there was some evidence of intent to the contrary, but there was none in this case that SBA did not believe the explanation they offered.

This was railroading, plain and simple.

Exactly. There were arguments all over the Internet, all over the country, probably internationally, over whether it is true or false that Obamacare will fund abortions. The legal details were hashed over and argued over ad infinitum. To say that it was impossible for a political organization to take a good faith position that Obamacare would fund abortion, and hence to allow a defamation lawsuit (a defamation lawsuit!) based on such a claim to go to a civil jury trial, is nearly incredible and could have wide-ranging ramifications for freedom of political speech.

What is next? If some group says that Barack Obama is not a Christian, will this religious judgment also be subject to a defamation lawsuit? If a politician votes for funding the UNFPA and is defeated after a political group runs ads saying that he supported funding for forced abortions in China, will this also be taken to be fair game for a defamation lawsuit, because the judge reads some UNFPA documents and finds no record of explicit support for forced abortions?

This is legal incompetence bordering on (and probably amounting to) partisan malice. I would be interested to know what recourse SBAL (or any other political organization) has in such a case, when a case is sent to trial which never should have been. Remember: The trial itself, the fact that the trial is allowed, is chilling to controversial political speech. Later groups in Judge Black's jurisdiction will understandably worry that this judge will take sides on political issues and consider political speech he disagrees with to be at least try-able as malicious falsehood. The process is the punishment, whatever the jury decides.

I can't say I'm terribly surprised. Obama is known for selecting judges to the left of the liberal judges we already had. I just hope it doesn't start a trend of left-wing defamation lawsuits before incompetent left-wing judges.

Comments (26)

I think SBAL did three things that do qualify for defamation. First, they stated as a plain fact that the law "includes" taxpayer funding of abortions, without being able to point to any provision in the law itself to support it. If they had made clear that is was an opinion or that the law "allows" something under a fanciful interpretation, the case would have been dismissed. Second, when the Ohio election committee found probable cause that their statement was false they doubled down, which shows a reckless disregard for truth. Third, they accused Driehaus of official misconduct for "ordering" the advertising company not to put up the billboard until the issue was settled by the election committee, which is also false.

Step2, for this to be defamation requires that, as my lawyer friend says, no reasonable person could have held the position that SBAL held and holds. That's ridiculous. "Reckless disregard for truth" is a technical phrase that involves a striking or self-evident lack of good faith. Obviously neither SBAL nor many carefully-arguing pro-lifers around the country considered their interpretation to be "fanciful." That, again, is a highly controversial and politically loaded judgement.

As for the word "includes," it's ridiculous to take this to mean that the law expressly says, "This funds abortion." Nobody meant that, nobody intended to convey that, and anyone at all familiar with the debate knew that that wasn't what was meant. Again, I would make the parallel to saying that a funding appropriation that covers the UNFPA "includes" funding of forced abortions in China. It is not necessary that the law refer explicitly to abortion for the funding to be used, in fact, via some mechanism that a reasonable man could believe to be in place, including monetary fungibility, for funding abortions (or forced abortions in the case of the UNFPA).

As for the word "includes," it's ridiculous to take this to mean that the law expressly says, "This funds abortion."

Normally, if you say something is included in a new law that means you can look it up and verify it, you don't have to surmise based upon extraneous assumptions. I don't know why you think that is ridiculous, that is the standard meaning.

Nobody meant that, nobody intended to convey that, and anyone at all familiar with the debate knew that that wasn't what was meant.

I think this is a dispute where discovery and trial are necessary to determine if they did intend something different from what they wrote. It isn't the role of the judge to assume they meant something different in a defamation case in order to dismiss it.

It is not necessary that the law refer explicitly to abortion for the funding to be used, in fact, via some mechanism that a reasonable man could believe to be in place, including monetary fungibility, for funding abortions...

In that case a truthful person would say, "This law can be redirected by this mechanism towards funding abortions." That isn't as simple or accusative, but it is at least honest.

Step2, I'm sorry, but this is baloney. You're writing an ad, and the statement, "This includes funding for abortion" can be used to mean "It's highly probable that abortions will be funded under this law." That's not "meaning something different from what you said."

I must say that, based on your ideas, it appears that you _would_ (or should in consistency) support a defamation lawsuit if a group said that the funding for UNFPA "includes" funding for forced abortion and used this against a candidate. After all, nothing *in the law* mentions "forced abortions in China." Good grief.

[The judge] clearly comprehended the position that SBA was taking, which is that funding plans that do not prevent abortion coverage inevitably end up covering abortions, since money is fungible. That was the position taken contemporaneously by numerous pro-life organizations.

This is a knock-down. The question is whether they believed what they wrote to be true. The question is not whether some person might have understood something by it which was false (e.g., that the law itself expressly included provision for abortion funding). This is a question of whether their statement met the "malice" standard. If they themselves believed what they said, and what they meant by what they said, and a reasonable person could have believed that as well, then the whole case should have been kicked out. This is a matter of deliberately defaming someone. That's an open and shut case.

I can tell you this much: I myself and I daresay many other people who read such an ad would have known what they were getting at. And we're not mind readers. Hence, it is not the case that "any reasonable person" would have believed they were saying something that turns out to be false about the explicit provisions of the law. The ad appeared in a particular context.

I also note that one of the SBA statements (which Driehaus considers defamatory and apparently the judge thinks may defamatory) does not include the word "includes" but says that Driehaus "voted for taxpayer funding of abortion."

Now, this is the kind of thing that political groups say *all the time*. "So-and-so voted to deny women the right to X" or "So-and-so voted for cutting funding for Y" or "So-and-so voted for making the rich richer," etc. etc.

In all such cases one _obvious place_ to look for political disagreement and controversy is over whether, in fact, what so-and-so voted for amounted to the enrichment of the rich, cutting funding for Y, and so forth. Anyone remotely savvy knows that what comes after "so-and-so voted for" will be an _interpretation_ of the law for which so-and-so voted, an interpretation cast in highly negative terms which, quite plausibly, so-and-so would contest. This is basic to political advertising and political discourse. _Of course_ it's going to be debatable whether that's a completely accurate characterization of what so-and-so did. If the voter wants to know more, he can research the matter.

Nonetheless, that's not supposed to be the basis of a defamation lawsuit. We're supposed to be able to give these controversial, brief characterizations of an elected official's actions in office as part of protected political speech without being punished by a defamation lawsuit premised on an alternative opinion about the "true nature" of the vote in question. And by the way, adding, "It's a fact" before "that so-and-so voted to make the rich richer" doesn't change this point.

If anything, the fact that SBAL published ads saying "Driehaus voted for taxpayer funding of abortion" should put into context any hyper-literal interpretation of the word "includes" in other ads or other portions of the ads.

About eighteen years ago I saw an attack ad against a Republican congressman. He was pro-choice, but he didn't believe abortion should be taxpayer funded. The pro-choicers put out an ad saying that he would "deny a woman an abortion if she were raped." What they meant was that he didn't support state funding for abortion even in cases of rape! I don't think that should have been the basis of a _defamation_ lawsuit even though I think it was borderline dishonest. But the scope of First Amendment protections should plausibly have covered it, based on the fact that he was a public figure, this was political debate, and they really believed that denying a woman funding for an abortion in such a case was (at least in some plausible scenarios) to be thought of as "denying her an abortion." That is, after all, the entitlement mindset of liberals such as those who wrote the ad!

The emails here should be interesting - we might find out how dumb they think we are.. It might not be a bad thing if the hacks (on all sides, on every topic) who run these things had to actually consider the truth.

In another life I had occasion to use the opposition research folks and was always amazed at the shoddy and mendacious product i received. I never used the stuff I couldn't verify.

I once checked an opposition mailing on supposed votes my candidate cast (Congress). Not one was accurate. You really can't believe how stupid and dishonest some of these operatives are (again, on all sides).

Most voters are low information voters who are too often swayed by incomplete and misleading information. Your example Lydia is a good one, lying by omission is still lying. The voters have a right to have sourced, accurate information.

Al, I think you would have to admit (in honesty) that if you think all such things (as the example I gave) should be the subjects of defamation lawsuits this would be a radical change in the way that First Amendment jurisprudence has all along been applied to political advertising and public political debate. It would undoubtedly have a chilling effect. A big one. One would always be wondering whether some jury would proceed from, "Someone who read this probably would have thought x" to "The person who published this was telling a falsehood with malice." Not to mention the huge number of trials involved.

Think civil suits against manufacturers regarding possible consumer uses of their product and imagine applying a similar approach to political debate. Oy vey. Again, a radical change.

Defamation is supposed to be cut and dried. It's supposed to be for things like, "So-and-so murders little old ladies and buries them in his back yard" when he doesn't do so and no one remotely sane would ever have any reason whatsoever to think that he does. It's not supposed to depend on things like, "Do you think that denying someone funding for an abortion is tantamount to denying that person an abortion if she cannot get it any other way?" or "Do you think that Obamacare funds abortions?" These are controverted questions--ideological, legal, etc. The law shd. therefore not punish political speech that takes a particular stance on them, even in cases where someone might have misinterpreted such speech.

"Defamation is supposed to be cut and dried. It's supposed to be for things like, "So-and-so murders little old ladies and buries them in his back yard" when he doesn't do so and no one remotely sane would ever have any reason whatsoever to think that he does."

Isn't claiming that one supports federal funding for abortions equivalent to claiming that one supports using federal dollars to murder babies?

Yep. And if a reasonable man could have believed in good faith that he voted for a health care plan that will fund the murder of babies, then it is not defaming him to say that he voted for a health care plan that will fund the murder of babies.

Wow. I tried several criminal cases before Judge Black when he was in state court. He was always even-handed and even-tempered, one of the best courtrooms to be assigned to. He never whiffed on a question of criminal law like this. It's probably worth noting that he was endorsed by NARAL Pro-Choice America.

Does Steve Driehaus deny that he knew that ObamaCare could, potentially, be used to fund abortions when he voted for the bill? If not, then I fail to see how the SBAL is doing anything except reporting the mindset of, possibly, many people, including Driehaus (if he knew of the bill's possible use), who voted for the bill. Heck, even I, who almost never pay attention to politics, knew what Pelosi, et. al., were saying about the possibility of using the money for abortion. It isn't defamation if it happens to be the truth. So, is it the truth? Did Driehaus know that the bill could be used to fund abortions, if even obliquely? That would seem to be the first question any judge would ask. Where was the judge during the heated debates on the subject? Has he forgotten the very public history of this matter? It is almost impossible to believe that anyone paying attention could not know that a vote for the bill was a vote for abortions, since was sold that way at one point during the various forms of the bill, I think.

That is another thing - when did the SBAL put out the ads? One assumes after the ObamaCare bill had been voted for, so the argument of its use for abortion has been out there, independent of the SBAL, for many months. All one has to do is play for the judge any of, oh, say, 1000, radio or news commentaries that mention this facet of ObamaCare (and he can call me as a witness, since I heard them) and then, by his logic, all of these radio, tv, and news commentaries would be guilty of poisoning the well for Driehaus and liable for defamation charges if they occurred within the judge's jurisdiction.

This case has no legs.

Is it possible to sue the judge for malpractice? I don't think the judge's argument is a case to sue the SBAL, but it sounds more like a case to sue the voters who never bothered to understand the issue. I really wish voters could be held accountable for the decisions they make. It might scare people into actually knowing something other than a soundbite. If Driehaus has any case, it is against the voters.

In a word, MC, yes. Or he is pretending not to know it or pretending that it is irrelevant.

You'll see in the comments right here on this thread that Step2 literally says that because the SBAL said that the bill "includes" funding for abortion, and because the bill itself does not _say_ that it includes funding for abortion, then the statement that Driehaus voted for a bill that "includes" funding for abortion was defamatory of Driehaus! Evidently that's the kind of thinking we're up against here.

I once checked an opposition mailing on supposed votes my candidate cast (Congress). Not one was accurate. You really can't believe how stupid and dishonest some of these operatives are (again, on all sides).

Most voters are low information voters who are too often swayed by incomplete and misleading information. Your example Lydia is a good one, lying by omission is still lying. The voters have a right to have sourced, accurate information.

But that's part of the point, Al: political speech is full of incompletions, innuendo, defective presentations, and all sorts of other manifestations of spin and lack of regard of SIMPLE truth. That's the hurly-burly of the political world. It is up to the voters to do THEIR OWN checking, do their OWN research, and verify what they themselves believe to be the important facts, and ignore the so-called facts that they themselves consider irrelevant. You CANNOT rely on either side to represent the entire truth, because neither side reliably thinks what you think about which facts are relevant to "the truth". Political campaigns rely on this universally. Therefore, it simply is not the case that an intentionally incomplete statement amounts to a "lie". There isn't a political ad campaign out there that does not intend to emphasize certain facts and disregard other facts, because (looking at it charitably) they think those "other facts" are insignificant. That goes for liberals as much as for conservatives.

What you are suggesting, Al, is that we have had absolutely the wrong standard and wrong approach to enforcing "truth restraint" in the political arena for the past 300 years or so.

You're writing an ad, and the statement, "This includes funding for abortion" can be used to mean "It's highly probable that abortions will be funded under this law." That's not "meaning something different from what you said."

Of course it means something different, look how you changed it from something definite in the present tense to something probable in the future tense.

Defamation is supposed to be cut and dried. It's supposed to be for things like, "So-and-so murders little old ladies and buries them in his back yard" when he doesn't do so and no one remotely sane would ever have any reason whatsoever to think that he does.

Actually, if nobody sane would believe it, that is a valid defense against a defamation claim. Defamation suits are employed to fend off falsehoods that might be true if the defamed person was sufficiently corrupt (which is why it is considered an attack on someone's reputation), not outlandish accusations that nobody would ever believe.

Evidently that's the kind of thinking we're up against here.

Evidently, when Lydia says something is included in a law, she means that it only has to be probably true through some indirect method, and does not need to be...included in the wording. So Lydia won't sue me, I'm filing this under "fair comment and criticism." :)

Defamation suits are employed to fend off falsehoods that might be true if the defamed person was sufficiently corrupt (which is why it is considered an attack on someone's reputation), not outlandish accusations that nobody would ever believe.

What did Driehaus really believe? How is it defamation if it is the truth? Why won't anyone ask Driehaus under oath what his understanding of the Bill was?

Evidently, when Lydia says something is included in a law, she means that it only has to be probably true through some indirect method, and does not need to be...included in the wording.

Step2, I don't know what planet you have inhabited for the last few election cycles, but on this planet, people use "include" for all sorts of meanings, including precise ones and imprecise ones, and stretches, and vague ones, and a hundred others all in between. The phrasing can legitimately be used for the idea that such funding is within the practical applications that the bill has of natural course, "included" as within the penumbra of the law, just like the so-called "right to abortion" is included in the Constitution by way of its penumbra. That kind of "include" would be, as it were, distinct from claiming that the bill "says" to fund for abortions.

Lydia, I think that at this point a bit of chilling would be a good thing. Tony, the last time our politics were this polarized (and vicious) we resolved matters with a civil war. Interesting how your conservatism has driven you into a post-modern concept of "truth".

"And if a reasonable man could have believed in good faith that he voted for a health care plan that will fund the murder of babies, then it is not defaming him to say that he voted for a health care plan that will fund the murder of babies."

Precisely, and that is why I hope this case actually goes into discovery and trial. There is, it seems, a certain tension between Lydia's "reasonable man/good faith" theory and Tony's "everyone dissembles, trims, and lies in political campaigns and it's up to the voter to sort things out" approach.

What we will likely discover should discovery happen is that no one in the organization actually read the ACA; they simply accepted the talking points from some other organization/person which gets us to "good faith".

A good faith claim isn't a magic talisman that wards off all challenges. Rather, it is a matter to be determined from the actions of the party asserting it. A person who claims a good faith purchase from the trunk of a car at midnight is going to have a hard row to hoe. A person accusing another of murder in a most public manner based on an unvetted assertion by a third party can be reasonably challenged on their "good faith".

The good faith defense will evaporate, of course, should an email be found that in effect states that "we know there is nothing to the claim but the rubes eat it up so go ahead and use it" (yes, there is a point in the food chain where ridicule and contempt abound - it is the only way to do this sort of stuff).

Our friend, the Chicken, wrote,

"Does Steve Driehaus deny that he knew that ObamaCare could, potentially, be used to fund abortions when he voted for the bill?"

While I have no desire or intention to debate the matter on this thread, it is probably a good idea to put everyone on the same page. Below is a summary of abortion and the ACA (as well as a link to the law itself) which the Kaiser Foundation provides and which is in line with my recollection of the law's provisions. I provide these as a service to those who want to test Lydia's "reasonable man" theory on themselves.

"Plans in the Exchange: Plans participating in state-based exchanges will be required to cover a minimum set of services, defined as “essential health benefits, and the ACA explicitly prohibits states from including abortion in any essential benefits package. Therefore, no state or insurer offering a plan in an exchange will be required to offer abortion coverage, and each exchange must include at least one plan that does not cover abortions beyond those permitted by current federal law. Furthermore, states can bar all plans participating in the state exchanges from covering abortions, which at least five states (Arizona, Louisiana, Mississippi, Missouri, and Tennessee) have already elected to do since the health reform law’s passage."

"If the state does not bar coverage of abortions, private insurers can offer a plan that covers abortions beyond the federal limitations within an exchange. The ACA outlines a methodology for states to follow to ensure that no federal funds are used towards coverage for abortions beyond Hyde. Any plan that covers abortions limitations must estimate the actuarial value of such coverage by taking into account the cost of the abortion benefit (valued at least $1 per enrollee per month). This estimate cannot take into account any savings that might be achieved as a result of the abortions. Furthermore, plans that receive federal subsidies (it is believed that all plans in the exchanges will receive at least some federal subsidies) would have to collect two premium payments from all enrollees, including men and women of all ages. One payment would be for the value of the abortion benefit and the other payment would be for all other services. The funds would be deposited in separate allocation accounts, overseen and managed by state health insurance commissioners."

"Both the federal Office of Management and Budget and the Department of Health and Human Services are expected to publish guidelines in 2010 that states must follow to ensure that exchanges are adhering to these requirements.10 The health reform law prohibits plans in the exchanges from discriminating against any provider because of “unwillingness” to provide abortions. It does not preempt other current state policies regarding abortion, such as parental notification and waiting period laws."

Right, Al, and as you know, there were also answers--many of them--to those sorts of statements. All over. From people who were carefully examining the matter.

As I've said, this was a matter of intense debate about what would actually happen under the law or was likely to happen. The fact that the President signed a legally vacuous executive order toward the end of the whole thing was just one bit of the shenanigans. It is only your own partisanship that would lead you to imply that only fools or knaves could have taken a particular side on that hotly debated political issue. You and Judge Black should get along real swell.

Al, it is not the pro-life side trying to push the country into a new regime, new practices, new ways of forcing people to pay for that which they find morally repulsive. If it is true that

the last time our politics were this polarized (and vicious) we resolved matters with a civil war.

then it is the liberals who are the engine causing the disturbance. I wish it were not so, but there it is. If war comes of it, it will not be because pro-lifers tried, with strenuous efforts, to prevent the very changes that cause such war.

Tony's "everyone dissembles, trims, and lies in political campaigns and it's up to the voter to sort things out" approach.

I did not say, nor intent to imply, that political speech is full of lies, everyone is doing it so it is free from legal censure. Go read my comments again. Everyone gives a portion of the truth, that portion they think is critical. Then cast that truth in its most powerful form of argument. These are not "lies" in any serious sense, and CERTAINLY not in a legal sense. It is up to voters to recognize that there is more to the story than one candidate's claims, and do their own searching for the rest of the story. I do that for conservative claims - 3 weeks ago I sent back to a family member a critique of a chain email that was critical of Mr. Obama, because it was a little loose with the facts (incomplete, especially), which I took the time to CHECK OUT. Don't you do it for liberal claims?

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